Expert Witnesses: Legal Legionnaires

Expert testimony is useful to courts when it is presented by impartial, court-appointed experts rather than by legal legionnaires bought and paid for by the warring parties. That is the answer to the question posed by Browne and Keeley in their July 5, 1999 article in The Scientist.1 Although neutral expertise is antithetical to the American adversarial system of Justice, several pioneering judges have used such unbiased experts in complex trials.2 The most recent example is breast implant litigation, where scientists with relevant expertise were empaneled by federal judges to review the evidence about breast implants and systemic disease and report their findings to their courts. These panels found no evidence that silicone breast implants cause systemic disease. Such judicial procedures are reminiscent of European courts.2,3 When scientific evidence is an issue at trial and specific expertise is needed, a European court on its own motion or that of a party selects an expert. Regardless of the country-specific details, the European expert witness is the court's, not the party's. Court-appointed experts are compensated, usually by the losing party, but according to a standard scale rather than the often outlandish fee-for-service costs of American experts.2 Thus, European experts are independent of both parties, unlike experts in America. And because they are often selected from lists of the faculties of universities and technical institutes, European experts are more likely to represent prevailing views of the relevant scientific community.3 The U.S. Supreme Court through a series of decisions has provided impetus for American trial judges, like European judges, to use impartial expertise. The Court's landmark 1993 decision Daubert v. Merrell Dow Pharmaceuticals Inc., while usually cited for its assignment to judges of a "gatekeeping" role in pretrial screening of scientific evidence, also encouraged them to appoint experts to help in such evaluation of scientific evidence. The Court in 1997 reemphasized the trial judge's role as scientific "gatekeeper" in General Electric v. Joiner, where the issue was whether the plaintiff's lung cancer was caused by environmental toxins. The decision, written by Chief Justice Rehnquist, supported the trial court's exclusion of the plaintiff's experts' opinion that certain environmental toxins caused lung cancer because the trial judge did not consider the proposed testimony scientifically valid. The overturned appeals court had wanted the jury to evaluate the validity of the expert's testimony, but the Supreme Court decided differently and upheld the trial judge's decision. And of more general impact, the Court sustained the level of discretion that trial judges had in excluding questionable evidence from trial. In his concurrence, Justice Breyer also restated the Daubert court's recommendation that judges appoint their own experts in cases involving complex evidence. In its 1998 U.S. v. Scheffer decision, the Court reaffirmed both the Daubert standards for the admissibility of scientific evidence and the discretion of the trial court in the process when it supported the exclusion by the trial judge of polygraph evidence. This decision had some irony because the exclusion of "lie detector" evidence in its 1923 Frye v. United States decision, since overturned by Daubert, marked the beginning of the development of the modern American rules governing scientific evidence at trial. And in 1999, the Court in Kuhmo v. Carmichael encouraged judges to scrutinize and exclude from trial if appropriate not only the scientific evidence but also the scientific expert. Although the impact of these Supreme Court decisions will not be manifest for many years, there is a clear trend in trials of a developing evidentiary hurdle of scientific validity beyond mere relevance and reliability, a hurdle that includes general acceptance in the scientific community as well as many other "Daubert" factors that go to scientific validity.2 Thus, Browne and Kelley get it backward when they state that scientific testimony not "generally accepted" can enter the courtroom so long as it is relevant and reliable. The Court rather encourages judges to scrutinize both the evidence and the expert for scientific validity and to keep both out when not, in addition to other criteria, scientifically acceptable.2,4 Professional organizations of scientists and physicians could serve an important role in fostering the forensic use of neutral and unbiased expertise by developing lists of experts for the courts.2,3 In fact, in addition to the Supreme Court, several judicial manuals, texts, and articles encourage judges to use such an approach and even to contact nearby medical schools or associations for potential experts.5 It has even been suggested that the rule governing court selection of experts be modified to require parties to submit a list of potential experts for the judge's selection. However, few medical or scientific organizations maintain such a listing of their members, although they readily could.2,6 The recent evidence that courts are willing to seek outside expertise for complex medical and scientific cases should encourage professional organizations of scientists and physicians to promote this activity by both helping to formulate the policies and procedures that would regulate such selections and, perhaps more importantly, by identifying from their ranks neutral and unbiased experts that could be used by courts in their quests for scientific and legal truths.7 To assist the courts, prominent scientific and medical organizations, or a new interorganizational body, should develop and certify a list of experts willing to so serve in their areas of expertise.2,3,7 These lists could be made available to the appropriate courts and thus provide them with at least the potential for unbiased neutral expertise in complex cases that involve scientific evidence. The recent initiation by the American Association for the Advancement of Science of a demonstration project regarding court-appointed experts (CASE) could help achieve these goals.2,7,8. L.J. Deftos, M.D., J.D. (ljdeftos@ucsd.edu), is a professor of medicine at the University of California, San Diego, and a staff physician at the San Diego VA Medical Center. References 1. M.N. Browne and T.J. Keeley, "When is expert testimony useful to courts?" The Scientist, 13[14]:13, July 5, 1999. 2. L.J. Deftos, "Medical and scientific organizations and scientific evidence in U.S. trials," Academic Medicine, 74:231-35, March 1999. 3. L.J. Deftos, "A new battlefield: masters and experts," The National Law Journal, March 30, 1998, page A-19. 4. L.J. Deftos, "Daubert & Frye: compounding the controversy over the forensic use of DNA testing," Whittier Law Review, 15:955-79, 1994. 5. J.S. Cecil, T.E. Willging, "Court-appointed experts," Federal Judicial Center Reference Manual on Scientific Evidence, 527-73, 1994. 6. L.J. Deftos, "Genomic torts: the law of the future," University of San Francisco Law Review, 32:105-37, 1997. 7. S. Breyer, "The interdependence of science and the law," Science, 280:537-8, 1998. 8. M.S. Frankel, D. Runkle, "Scientists in court," The Scientist, 13[17]:13, Aug. 30, 1999.

Expert Witnesses: Legal Legionnaires

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